CITATION: R. v. Smith, 2009 ONCA 533

DATE: 20090630

DOCKET: C47660

COURT OF APPEAL FOR ONTARIO

Sharpe, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Douglas Smith

Appellant

W. Gerald Punnett, for the appellant

Linda A. Shin, for the respondent

Heard and released orally: June 19, 2009

On appeal from the decision of Justice Roland J. Haines of the Superior Court of Justice, dated August 10, 2007, sitting on appeal from a decision of Justice M.P. O’Drea of the Ontario Court of Justice, dated March 8, 2006.

ENDORSEMENT

[1] Under s. 839(1) of the Criminal Code appeals to this court from decisions made by judges of the Superior Court of Justice sitting as a summary conviction appeal court under Part XXVII of the Criminal Code are confined to grounds of appeal that involve questions of law alone and require leave to appeal. Leave to appeal is granted sparingly.

[2] The controlling factors in the determination of whether leave to appeal should be granted are the significance of the legal issues raised to the general administration of criminal justice and the merits of the proposed grounds of appeal. See R. v. R.(R.) (2008), 2008 ONCA 497, 234 C.C.C. (3d) 463 (Ont. C.A.) at para. 37.

[3] The ground of appeal upon which the applicant seeks leave to appeal is whether a police officer had reasonable and probable grounds to make a breath demand, is essentially a question of fact, not a question of law alone: R. v. Bernshaw (1995), 1995 CanLII 150 (SCC), 95 C.C.C. (3d) 193 at paras. 45 and 50. Even if the proposed ground of appeal involved a question of law alone, it is not a question that extends beyond the circumstances of this case, thus cannot be said to raise issues of significance to the general administration of criminal justice. The principles of law that control are well-settled.

[4] The applicant points to no specific error made by the summary conviction appeal court judge, rather seeks a third run at the analysis performed first by the trial judge, then by the judge of the summary conviction appeal court. Appeals under s. 839(1) of the Criminal Code are not second appeals from the decision of the summary conviction trial court. Further, the proposed ground of appeal is devoid of merit.

[5] Leave to appeal is refused.

“Robert Sharpe J.A.”

“David Watt J.A.”

“G.G. Epstein J.A.”